15 



Furthermore, your power to prohibit absolutely the use or occupation of 

 any forest reserve, when such action is deemed by you essential to insure 

 its objects and preserve the forests from destruction, would probably be 

 unquestionable, and that the authority to prohibit carries with it the right 

 to attach conditions to a permission is well established. (22 Opin., 13, 27.) 



In answer to your third question, therefore, I have to advise you that, in 

 my opinion, you are authorized to make a reasonable charge in connection 

 with the use and occupation of these forest reserves whenever, in your 

 judgment, such a course seems consistent with insuring the objects of the 

 reservation and the protection of the forests thereon from destruction. 



The question under consideration in that case was whether you had authority 

 to make a reasonable charge as a condition of a permit under the act approved 

 June 4, 1897 (30 Stats., 35), which authorized the Secretary of the Interior to 



Make such rules and regulations and establish such service as will insure 

 the objects of such reservations, namely, to rc</nlate their occupancy and use 

 and to prevent the forests thereon from destruction. 



It will be observed that neither of these acts conferred upon the Secretary of 

 the Interior expressly any authority to make a charge of any kind as a condi- 

 tion of granting the permits which they respectively authorized. It was held, 

 however, by Attorney-General Moody that such authority was implied in the 

 power conferred upon the Secretary by the act of 1897 to grant or refuse the 

 permits, in his discretion, and the act of 1905 was referred to as substantially 

 a legislative recognition of this -authority on his part. If, however, the act of 

 1897 conferred upon the Secretary of the Interior and, therefore, afterwards, 

 upon the Secretary of Agriculture the authority, in his discretion, to require 

 payment of a reasonable charge as a condition of issuing any such permits as 

 are authorized by the said act, it seems to me quite clear that the act of 1903, 

 .above quoted, conveys the like authority. The language of the later act appears 

 to me more explicit than that of the former, and the intention of the Congress 

 to leave the privileges granted under that act revocable in the discretion of the 

 Secretary, as is expressly stated in the last proviso, above quoted, of the act of 

 1901, seems to be more nearly consonant with a purpose to intrust to his discre- 

 tion all matters connected with the granting of such permits than is any relevant 

 provision to be found in the act of 1897. I .conclude, therefore, that you are 

 authorized by the act of 1901 to make the granting of permits for the purposes 

 contemplated by that act dependent upon the payment, by the persons receiving 

 such permits, of such charges as you may deem reasonable for the purposes 

 contemplated by the law. 



Whether charges based upon the three grounds specifically enumerated in 

 your letter requesting an opinion would or would not be reasonable is not, 

 under the circumstances of this case, a question proper to be determined by 

 this Department, but a matter left by the law entirely to your discretion. In 

 Riverside Oil Company v. Hitchcock (190 U. S., 325), referred to in the opinion 

 of Attorney-General Moody, above quoted, the court says : " The responsibility, 

 as well as the power, rests with the Secretary, uncontrolled by the courts." This 

 would seem to be no less true as to the question presented in the present case. 



It may be well for me to say, however, that I do not think it clear, as seems 

 to be assumed in some of the papers forwarded with your letter, that no charge 

 can be made for water used by persons to whom permits may be granted under 

 the act approved February 15, 1901. Such persons, independently of their per- 

 mits, would have no right or authority to appropriate the waters within the 

 forest reserves ; at all events, for such a purpose as the production of electric- 

 power. It is true that the Congress and the courts have recognized a right to 

 appropriate water on the public lands under State laws or local customs, but 

 lands within the forest reserves are not covered by general statutes referring to 

 the -public lands; and the right to use water on such reserves can be secured, 

 it would seem, only under the provisions of the act approved June 4, 1897, and 

 of other legislation specifically referring to the reserves, unless, perhaps, such 

 rights existed before the particular reserve in question was created. I do not, 

 however, consider it necessary to express a positive opinion on this subject, since 

 I understand from your letter that you do not intend to consider the value of 

 the mere use of the water itself in fixing the compensation to be paid as a 

 condition of permits for its use. 



I advise you, therefore, in conclusion, that, in my opinion, you have the right 

 to make what you believe to be a reasonable charge, as a condition of issuing 



